In 2012, California held its first elections under its new nonpartisan “Top-Two” Primary system. All statewide elections in California, except for the office of president, were conducted under this system. The presidential primary was, instead, conducted under the old semi-closed partisan primary rules.

The initiative that created the nonpartisan “top-two” system was authored by the Independent Voter Project (IVP) and passed by the voters in 2010 as an amendment to the California Constitution.

This notice is to inform you that the Independent Voter Project (“IVP”) has elected to withdraw its initiative referenced above in light of legal questions that have recently come to our attention. In that regard, we respectfully request the legal opinion from the Secretary of State as to the following questions:

Background:

C.A. Const. art. 2, § 5(c) requires the Secretary of State to conduct an ‘open presidential primary’ election. According to the dictionaries of both Oxford and Merriam-Webster, an ‘open primary’ is defined, respectively as:

a primary election in which voters are not required to declare party affiliation and, a primary in which the voter is not required to indicate party affiliation

Yet, pursuant to California Elections Code Section 13102(b), a voter not affiliated with a political party may not participate in the selection of candidates during the presidential primary stage unless a political party allows the voter to participate.

This presidential primary election scheme appears to be a semi-closed primary system, not the system contemplated by the California Constitution.

Questions:

1. Did the Secretary of State properly and Constitutionally conduct California’s 2012 presidential primary election?

2. If the answer to the first question is “Yes,”

(a) How does the Secretary of State explain the apparent conflict between the Constitutional language, the statutory implementation, and the actual administration of the 2012 presidential primary election?

3. If the answer to the first question is “No,”

(a) Why was a semi-closed primary conducted instead of an ‘open presidential primary’?

and,

(b) Will the Secretary of State conduct a presidential primary in 2016 that comports with California’s Constitutional requirements?

About the Author

Independent Voter Project

IVP was founded in 2006 to provide voters with accurate and reliable information about important public policy issues and to encourage non-partisan voters to vote and to participate in the democratic process.

Even after the California constitution was amended and IVP requested that their questions about the primary be answered, I believe that the majority party had made the decision to disallow the open primary for political reasons and there maybe a clause in the constitution that allows for the Secretary of State to disallow the open primary.

One would have to read the full change and if there is a clause that allows a closed primary, a lawsuit needs to be began on behalf of the iVP.

Well, I would be interested to see how SecState (Calif) reacts. That seems to be where we are at this juncture. Seeing what our election head cheese in California says. Everything else is sort of on hold.

When I went to vote I was asked to declare myself a democrat or a republican. If I did not do that I could not have a ballot and I could not vote. When I said I am an independent, they said well just declare one or the other to get your ballot. I don't feel I have to vote for a party. I wish to vote for the person I feel is best suited for the job. Will this be the same scenario in 2016<?

We may have some freedoms left, but were not free men as long as we allow the media to elect our leaders and ignore citizen that don't want to sell their future office to corporate interests. It's the same as having no 1st amendment to be barred from mass communication AKA (TV and media) These corporations are global and owned by foreigners. Foreigners may be barred from casting votes in our elections as they should be, but they can own these media companies and they are the one who name our Presidents then drill them into our heads by repetitive endless advertising. To save America we need to stay with paper ballots and elect people that are wanting to work in public service and not owned by a corporation. God Bless America

Let's say there are two main parties, the Yellow Party and the Purple Party.

Let's say the Yellow Party has a candidate who has no significant opposition from any other Yellow candidate. This means that, for all intents and purposes, an additional vote for the Yellow Party candidate in the Yellow Primary is essentially a vote that doesn't mean much.

Now let's say the Purple Party has two candidates. ONE candidate is preferred by more true Purple voters, and the Yellow party leaders would prefer that a lesser Purple candidate win the Purple primary. In a closed primary, this preferred candidate would win and move forward to the general election, where the Yellow candidate has less of a chance to win against the preferred Purple candidate. However, in an open primary, the Yellow party voter can come in and register as a Purple party voter, and then vote for the Purple candidate running AGAINST the preferred candidate. In many cases the additional votes rendered by Yellow party members, added to the Purple party voters would make the lesser preferred candidate win the Purple Primary. In this way the Yellow Party candidate has a greater chance of winning the general election, because it will help suppress the Purple Party vote.

Also voters don't turn out in large numbers for the primaries. Just helps big money candidates knock out any competition from running a campaign. Grassroots candidates don't even gave time to raise funds enough for a campaign by primaries because of restrictions on fundraising prior to primaries. Party candidates are funded by their party in primaries.

Not really because the distrcts have been gerrymandered to favor one party so it eliminates all other choices from the ballot all together. And it favors big money candidates over insependents, third party and grass roots because they can afford to buy media in the primary whereas these other candidates can't.

You have it all wrong. If the top two candidates (from among a wide open field) boil down to two of the same party... THEN THAT'S WHAT THE VOTERS WANTED. You are actually getting what the voters wanted for the first time, but you don't even recognize it.

The vote belongs to the People and not the parties. Any election rules that prevent the People from voting their own conscious is a violation of their rights.
Both parties have been unlawfully disenfranchising the American People for decades. It's time we take back the vote!

I will be fascinated to see if there is a reason under federal law that the primary was conducted as it was. Unless the SoS has a history of performing badly, I suspect that there was a legal basis for doing it the way they did.

But unless it is pursued, that is speculation rather than fact, so I applaud the letter. Good job!

Yes but only the two top vote getters get to the general election so after the primary you only have two candidates to choose from and because of the gerrymandering of the districts, those candidates that gey through the primary are the ones with money and are often from the same party so the voters end up with no real choice on the general election and we end up with statis quo. Grassroots candidates never make it past the primaries so no real chioces exist in the general elections.

The purpose of the nonpartisan primary was to level the playing field so everyone, candidates and voters, had an equal opportunity in the primary election.
The districts you speak of, where there where 2 candidates, are exactly why the new system was designed…under the old system, the candidate from the major party would have "won" during the primary and never really had to face the voters … now, he/she may be challenged by someone who may have the same party registration, but appeals to more voters in the general.

The part of the California Constitution mandating a top-two primary says it only covers Congress and partisan state office elections. The Secretary of State is just following the Constitution and the California Election code. There is no constitutional provision and no law saying the presidential primary must be open. Democrats voluntarily open their presidential primary to independents; Republican don't.

There is no common meaning of "open". If one reads the 1972 ballot pamphlet, it is obvious from the arguments that "open" in the context of that ballot measure referred to a system in which the ballot was open to every bona fide candidate, whether they filed or not.

My experience (after being a candidate in two very local so-called "non-partisan" elections, and discussions with other similar candidates is that when public money is at issue all elections are partisan -- and made so by the candidate supporters.

It is foolish and naive to try to take politics out of politics!!

If you want less partisanship then REDUCE THE SIZE AND REACH OF GOVERNMENT so that candidates/electees will have less impact on our lives. Now with govt intruding not just in our bedrooms, but in our house, our car, doctor's office, and our eating, etc. party affiliation is a way to organize to fight for GOVT largess.

1: Why should the Yellow and Purple parties be privy to public funds to conduct their primary if they are indeed private groups with a limited membership? (in some cases both parties combined only account for less than half of a state's voting population)2: What is to prevent the Yellow and Purple parties from funding their own selection process to decide who the 'real' Yellow or Purple party candidate is? These candidates could then run with the official party endorsement and non-party members wouldnt have to subsidize a political party they dont affiliate with.

That isn't necessarily so. If five Democrats and two Republicans run for one particular office in the primary, it may be that the five Democrats get far more votes put together than the two Republicans. But the two Republicans each get more votes than any Democrat. So even though a majority of voters may want a Democrat, they are stuck with a Republican.

There is no federal law on this subject. California held a blanket presidential primary in 2000. But, the term "open" in the California Constitution relating to presidential primaries means that all candidates mentioned in the news media as serious candidates must be put on the ballot, even without their asking. The word "open" has many different meanings. The legislative history of that part of the California Constitution, and various lawsuits relating to which candidates are "serious", establishes this beyond doubt.

Top-two does not level the playing field, because a majority of voters in California consider themselves automatic supporters of either the Democratic Party or the Republican Party. If the sponsors of Prop. 14 wanted a genuine level playing field, they should have written a proposal that eliminates party labels from the ballot and puts in place public funding of campaigns, similar to the system used in Maine.

You seem so interested in this, you should do the work to find the 1972 voters pamphlet and see for yourself what the intent of the people who drafted that constitutional provision was. I'm not sure if it is on the internet but it might be, and if it isn't, you could ask the Secretary of State for a copy.

Richard, your right about the majority of voters have been trained to gravitate to either major party not only in California, but the majority of the states.

As for Maine, their history lends itself to the open meeting such as the traditional Town Hall.

Which was commonplace in the New England States.

Hopefully the movement of the early to mid 1990's and different organizations like the Tea Party and other independent groups working for a more representative government will be as successful as in the 2010 elections.

Thank you for that open-minded and friendly response. I wonder if we could possibly meet? I live in San Francisco. Where do you live? My phone number is 415-922-9779. As far as waiting some years to see if Prop. 14 works better in the future, remember that the Louisiana top-two system started for state office in 1975, and for congressional elections in 1978. It hasn't changed Louisiana politics and it's been 38 years. Originally the Louisiana top-two system was worse than it is now, but in 1997 the US Supreme Court ruled unanimously in Foster v Love that Louisiana was breaking the federal law by holding its congressional elections two months before the mandated November date. So Louisiana eliminated its primary and holds its congressional elections in November, and if no one gets 50%, then there is a run-off in December. 85% of the time, someone gets a majority and no run-off is needed. Prop. 14 supporters could have written their law like that, and I wish they had.

Thank you for your comment! Prop. 14 and its backers have done these bad things to California election law: (1) took away write-in space in November for Congress and state office; (2) sharply increased the petition in lieu of filing fee for minor party candidates to get on the primary ballot, from 150 signatures to 10,000 for statewide office; (3) made it more difficult for minor parties to remain ballot-qualified because the old way they stayed on the ballot was to get 2% for any statewide office in a midterm year and now they aren't on the November ballot anymore; (4) took away the right of an independent candidate for Congress or state office to have the label "independent" on the ballot. Please ask the authors of Prop. 14 how they feel about each of those things.

Prop. 14 says, "Top Two Candidate Open Primary. All registered voters otherwise qualified to vote shall be guaranteed the unrestricted right to vote for the candidate of their choice in all state and congressional elections." It doesn't apply to president, because president isn't a state office. If Prop. 14 is being misinterpreted, it is being misinterpreted to deny voters a free choice in November. One would think that Prop. 14 would require write-in space on the ballot in November, yet the implementing statute took away write-ins. I wish people on this site would ask the authors of Prop. 14 how they feel about Prop. 14 causing California to be only the 2nd state in U.S. history to have ever had write-in space, and then lost it. Louisiana was the first.

Sounds like you have experience in hearing cats. A body without a head goes no where. To limit partisanship is to have leaders that first have the overall welfare of the American people at heart and a willingness to work together to create support and cooperation to achieve their goals.

The term "open" in election law has about 7 different meanings. To you, it always refers to something like Prop. 14. But in England, "open primary" means a primary conducted and paid for by the party, in which all the voters of a district choose a party's Commons candidate. In Pennsylvania, "open primary" means one in which the party organization makes no endorsement. In mainstream political science literature and also US Supreme Court opinions, "open primary" means the type of primary used in most southern states in which there is no registration by party and voters choose any party's primary ballot. In Alaska, it generally means a blanket primary. In Arizona it has frequently been used to mean a primary in which independents can vote in any party's primary. In the past in California, it was sometimes used to refer to what we generally today call fusion, the ability of candidates to run in the primaries of several parties. Back in the 1970's there was almost no discussion whatsoever of the issue of who can vote in primaries, it was just a term that was chosen to refer to whether or not to "open" presidential primaries to all presidential candidates. It was a way to end domination of presidential primaries by favorite sons.

That language about an "open presidential primary" was put in the Cal. Constitution as part of Prop. 7 in November 1972. The same measure made some other constitutional election law changes, including the 18-year vote. The ballot measure arguments about Prop. 7 made it clear that the purpose of the part about the presidential primary was to make sure that every presidential candidate of importance was on the primary ballot in California. If candidates were being coy, their names would go on anyway unless they filed an affidavit saying they weren't running. That ended the old practice of favorite sons in California getting themselves on the primary ballot and intimidating certain genuine presidential candidates to stay out.

The legislature implemented it by adding election code section 6311 early in 1976, in time for that year's presidential primary. It said, "The Sec. of State shall place the name of a candidate upon the pres. primary ballot when he or she has determined that such a candidate is generally advocated for or recognized throughout the U.S. or California as actively seeking the nomination..." That was the code section for the Democrats; similar code sections were added for the Republicans.